HEM RAJ Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellant Hem Raj has been convicted and sentenced for the commission of offence punishable under Sections 20 & 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the "Act" in short) with the allegation that on 05.05.2004, at 07.00 p.m., when his search conducted in Aut Bazar, charas weighing 100 gram and brown sugar (heroin) weighing15 gram, were recovered from him. Consequently, he has been sentenced to undergo rigorous imprisonment for a period of two years with Rs. 20, 000/- as fine under Section 21 and to undergo rigorous imprisonment for three month with Rs.2, 000/- as fine under Section 20 of the Narcotic Drugs and Psychotropic Substances Act.

(2.) Aggrieved by the findings of conviction recorded against him, the appellant-convict has assailed the same on the grounds, inter-alia, that learned trial Court has failed to appreciate the facts of the case and also the law applicable in its right perspective and as a result thereof, wrong findings came to be recorded against him. Since, independent witness Nande Ram (PW-1) has not supported the prosecution case and rather was declared hostile, therefore, the testimonies of the official witnesses Constable Dhan Dev (PW-2) and LHC Narpat Ram (PW-8) , were neither plausible nor sufficient to record the findings of conviction against the accused. The Investigating Officer PW-10 Ram Lal, who allegedly conducted the search of the accused-convict, failed to give one search first. Nothing is there in the testimonies of PW-1 Nande Ram, PW-2 Dhan Dev and PW-8 Narpat Ram that the samples were drawn after mixing the contraband allegedly charas and brown sugar properly. The testimonies of the officials witnesses, being contradictory in nature and also inconsistent too, erroneously relied upon.

(3.) Convict Hem Raj is resident of Aut itself. The Police Station is also situated in Aut Bazar. As per the prosecution story, on 05.05.2004, around 07.00 p.m., PW-10 HC Ram Lal was patrolling in Aut Bazar. PW-2 Constable Dhan Dev and PW-8 LHC Narpat Ram, were also with him. The police party noticed the accused coming from Bazar side holding a polythene bag in his hand. On seeing the police, he tried to flee away, however, nabbed by PW-10 HC Ram Lal and then on inquiry, he disclosed his name as Hem Raj and other antecedents. On formal search of the polythene bag in his hand, in presence of PW-1 Nande Ram and PW-8 Narpat Ram, packs of 20 gram, 10 gram, 2 gram and 1 gram, were found kept in a box. In another polythene bag inside the polythene bag in the hand of accused, charas in the shape of sticks alongwith brown sugar, in three small packs, was found kept. The brown sugar in each small pack when weighed was found 5 gram in each pack, i.e. 15 gram in all. The three parcel packs were marked as A-1, A-2 and A- The packs, i.e. A-1 and A-2, were sample parcels of brown sugar, whereas the third parcel (A-3) was containing remaining 5 gram brown sugar. The recovered charas was also weighed and found 100 gram, out of which, two samples of 25 gram each were separated for the purpose of samples and sealed in two parcels marked as A-3 and A-4. The remaining charas was sealed in another parcel marked as A-5. The sample of seal'T' Ex.PC was obtained on a piece of cloth and the seal after its use handed over to PW-1 Nande Ram. PW-10 HC Ram Lal, the Investigating Officer, has also filled up the relevant columns of NCB form in triplicate and put seal 'T' on this document also. The charas and brown sugar recovered from the accused were taken into possession vide recovery memo Ex.PA in the presence of PW-1 Nande Ram and PW-8 Narpat Ram. For registration of the case, he prepared Ruka Ex.PL, on the basis of which, FIR Ex.PK was registered by SI/SHO PW-7 Dabe Ram. The accused was arrested and before that the grounds of his arrest were disclosed to him vide Ex.PD. His nephew Bharat Kumar was informed about his arrest. The site plan Ex.PQ was prepared on the spot and the statements of the witnesses were also recorded there. The accused alongwith case property was produced by PW-10 HC Ram Lal before SI/SHO PW-7 Dabe Ram. PW-7 Dabe Ram has resealed all the parcels A-1 to A-5 with seal 'K' and obtained sample of seal Ex.PM on a piece of cloth. The seal was also embossed on the NCB form Ex.PN. The case property, thereafter, was deposited along with documents and specimen seals 'K' & 'T' with MHC Raj Kumar (PW-3) , Police Station, Aut, for safe custody in the Malkhana. PW-3 MHC Raj Kumar entered the case property in the Malkhana Register vide entries Ex.PE. On 11.05.2004, he handed over the parcel of brown sugar mark A-1 and one sample parcel of charas mark A-3, alongwith documents and sample of seal, to Constable Baldev Singh (PW-4) vide R.C. Nos.26/04 and 27/04, with a direction to deposit the same with CFSL, Chandigarh and CTL Kandaghat, respectively. PW-4 Constable Baldev Singh accordingly deposited the case property as directed and produced the receipts of RC Ex.PF and Ex.PG before PW-3 MHC Raj Kumar, when he returned to the Police Station.